Q41: Does the start up of a new TLD pose additional risks to intellectual property
rights that warrant additional protections?A41: UDRP (and ultimately court proceedings)
constitute sufficient protection.
I would also like to add that I do not understand
how and why we moved from the initially envisaged (see White Paper) protection of
"famous marks" to the current debate where solutions for "all trademarks worldwide"
are proposed.
This attitude is absolutely to be rejected.
Q43: Is the availability
of the UDRP and court proceedings as remedies for violations of enforceable legal
rights an appropriate element of protection of intellectual-property rights that
should apply to all new TLDs? Are there any other protections that should be made
available in all new TLDs, regardless of their type?
A43: UDRP (and ultimately
court proceedings) constitute sufficient protection of intellectual-property rights
in the TLDs where such protection is appropriate.
In some other TLDs (non-commercial,
advocacy, ....) intellectual-property rights protection would not be appropriated
at all.
Q46: Is exclusion of names appearing on a globally famous trademark
list a workable method of protecting such marks from infringement at the present
time? Would an exclusion mechanism be approprate in the future?
A46: I have the
impression that the whole story of the "famous trademark list" is based on a misunderstanding:
there seems to me to be community consensus that such a list should not be managed
by ICANN, but not really that such a list should not exist altogether.
The point
is that ICANN or the DNSO do not have neither the qualification nor the authority
in establishing, managing and enforcing such a list, but provided that such a list
exists, is of limited size (100?), is managed by an authoritative and qualified source
(WIPO), there should not be any problem for ICANN to refer to it for the grant of
additional (exceptional) protection.
In other words, I see this as a problem similar
to the definition of a country for the purpose of delegating a ccTLD.
ICANN does
not decide who is and who is not a Country (or famous mark), but uses the list provided
and managed by ISO (WIPO).